ELIZABETH LAYMON AND JERRY LAYMON SR PLAINTIFFS RESPONDENTS v. JAMES ALLEN DOING BUSINESS AS ALLEN VILLAGE GREENE LANDSCAPING CO DEFENDANT APPELLANT BRANCK CONSTRUCTION ET AL DEFENDANTS (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs

Memorandum:  Plaintiffs commenced this action seeking damages for injuries sustained by Elizabeth Laymon (plaintiff) when she fell after her foot became caught in a hole in a parking lot maintained by, inter alia, James F. Allen, doing business as Allen's Village Greene Landscaping Co. (defendant).  Contrary to the contention of defendant, Supreme Court properly denied his motion for summary judgment dismissing the amended complaint against him.  “A contractor may be liable for an affirmative act of negligence [that] results in the creation of a dangerous condition upon a public street or sidewalk” (Losito v. City of New York, 38 AD3d 854, 855;  see Brown v. Welsbach Corp., 301 N.Y.202, 205).   Here, the evidence submitted by defendant in support of his motion was insufficient to establish as a matter of law that he did not create or cause the allegedly dangerous condition (see Losito, 38 AD3d at 854) or that his alleged negligence was not a proximate cause of plaintiff's injuries (see Dodge v City of Hornell Indus.   Dev. Agency, 286 A.D.2d 902;  Kanney v. Goodyear Tire & Rubber Co., 245 A.D.2d 1034, 1036).

Patricia L. Morgan

Clerk of the Court